Supreme Court's latest church-state conundrum: Must a 'peace cross' memorial to World War I vets come down?

The Supreme Court will decide whether the "Peace Cross," a memorial to World War I veterans in Bladensburg, Maryland, must be removed from public land because of religious connotations.(Photo: Algerina Perna, AP)

WASHINGTON – The Supreme Court agreed Friday to decide whether a 93-year-old memorial to World War I veterans must be removed from public land in Maryland because it is shaped like a cross.

The latest church-state skirmish to come before the justices pits veterans organizations against the American Humanist Association, which represents atheists, agnostics and other secular groups. Its motto is "Good Without a God."

The 40-foot cross was built in 1925 by the American Legion and "a group of bereaved mothers," according to the Maryland-National Capital Park and Planning Commission, which wants it left alone. Honoring 49 men from Prince George's County who died in the war, it is listed on the National Register of Historic Places.

The commission took over the property in 1961 and maintains it with public funds. It sits in a three-way highway median that is now the county's busiest intersection.

The U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled 8-6 last October that the Latin cross is the "pre-eminent symbol of Christianity" and ordered it removed or destroyed. It sided with opponents in ruling that the memorial appears to honor Christian veterans above others.

The commission and American Legion say that's not the case. They argue that the monument had a secular dedication and has been used as the location for patriotic events dating back nearly a century. The cross, they say, represents the symbol of World War I dead.

"This court has recognized that passive displays – particularly displays that have stood without challenge for decades – may constitutionally employ religious symbols in order to convey a predominantly nonreligious message," they argue in court papers.

Nearly 20 military, veteran, religious and conservative groups urged the Supreme Court to step in, a huge number for a case that had yet to be granted. Lawyers for the commission and American Legion say if allowed to stand, the appeals court ruling will imperil hundreds of similar monuments on public land, including those in Arlington National Cemetery.

“One group’s agenda shouldn’t diminish the sacrifice made by America’s veterans and their families," said David Cortman, senior counsel for the conservative Alliance Defending Freedom. "The offended feelings of a passer-by does not amount to a constitutional crisis."

The group challenging the memorial calls it a "Christian cross monolith" that's in poor condition and is a safety hazard. Government funding for maintenance and restoration, it says, represents "excessive entanglement with religion."

It also disagrees that the monument was secular from the start, contending that it was conceived as a "Calvary Cross" to symbolize Jesus Christ's crucifixion and that events held over the decades have featured Christian-themed prayers.

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Newly confirmed Supreme Court Justice Brett Kavanaugh is sworn-in by retired Supreme Court Justice Anthony Kennedy during the ceremonial swearing-in held in the East Room of the White House in Washington. JACK GRUBER, USA TODAY

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Rachel Laser, president of Americans United for Separation of Church and State, said veterans can be honored "in ways that don’t promote a particular religion and that respect the religious diversity of Maryland’s citizens, including veterans. We urge the Supreme Court to affirm that this cross is unconstitutional.”

Federal appeals courts have ruled differently on similar memorials. Associate Justice Neil Gorsuch dissented as an appeals court judge in 2010 when the 10th Circuit refused to reconsider a panel's decision that memorial crosses violate the Constitution.

“Our court has now repeatedly misapplied the ‘reasonable observer’ test, and it is apparently destined to continue doing so until we are told to stop,” Gorsuch said.

Now the Supreme Court, with five conservative justices following the confirmation of Associate Justice Brett Kavanaugh last month, could issue just such an admonition.

Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh as his wife Ashley Kavanaugh holds the Bible while joined by their daughters Margaret and Liza, in the Justices Conference Room at the Supreme Court Building on Oct. 6, 2018 Fred Schilling, Collection of the Supreme Court of the United States via USA TODAY NETWORK